Citation Nr: 18159184 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 16-39 012 DATE: December 19, 2018 ORDER Service connection for frostbite residuals of the ears is denied. Service connection for frostbite residuals of the feet is denied. Service connection for Diabetes Mellitus, type II (DM), due to herbicide agent (Agent Orange) exposure is denied. Service connection for left upper extremity peripheral neuropathy secondary to DM is denied. Service connection for right upper extremity peripheral neuropathy secondary to DM is denied. Service connection for left lower extremity peripheral neuropathy secondary to DM is denied. Service connection for right lower extremity peripheral neuropathy secondary to DM is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of frostbite residuals of the ears. 2. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of frostbite residuals of the feet. 3. The Veteran’s Diabetes Mellitus, type II (DM), did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service exposure to herbicide agents, claimed as Agent Orange exposure, as the Veteran is not shown to have been exposed to herbicide agents. 4. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of left upper extremity peripheral neuropathy. 5. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of right upper extremity peripheral neuropathy. 6. The Veteran’s left lower extremity peripheral neuropathy, secondary to DM, did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomology is not established, and it is not due to, or aggravated beyond its natural progression by, any service-connected disability. 7. The Veteran’s right lower extremity peripheral neuropathy, secondary to DM, did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomology is not established, and it is not due to, or aggravated beyond its natural progression by, any service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for frostbite residuals of the ears are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for frostbite residuals of the feet are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for Diabetes Mellitus, type II, are not met. 38 U.S.C. §§ 1110, 1112, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for left upper extremity peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for right upper extremity peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for left lower extremity peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 1112, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 7. The criteria for service connection for right lower extremity peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 1112, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1966 to December 1968. Service Connection Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to prove service connection, the record must contain evidence concerning: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a). The chronic diseases listed in 38 C.F.R. § 3.309(a) include Diabetes Mellitus and early onset peripheral neuropathy. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more any time after service, except that chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). Service connection may be established on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet .App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. A veteran who, during active service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to certain herbicide agents, including an herbicide agent commonly referred to as Agent Orange. 38 U.S.C. § 1116(f). Additionally, Veterans who served (a) in the Republic of Vietnam between January 9, 1962, to May 7, 1975, or (b) in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied between April 1, 1968, and August 31, 1971, are presumed to have been exposed to herbicide agents, such as Agent Orange, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). Exposure to Agent Orange may also be conceded on a factual basis for veterans whose duties placed them on or near the perimeters of certain United States Air Force bases in Thailand. If a Veteran was presumptively exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). These diseases, which include DM and early-onset peripheral neuropathy, shall have become manifest to a degree of 10 percent or more any time after service. 38 C.F.R. § 3.307(a)(6)(ii). If the Veteran did not serve in the Republic of Vietnam, Korea, or Thailand as described above, actual exposure to herbicides must be verified through an appropriate service department, or other sources, in order for the presumption of service connection for an herbicide-related diseased under 38 C.F.R. § 3.309(e) to be applicable. Exposure to herbicide agents is not presumed in such instances. However, if exposure to herbicide agents has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309(e) is applicable. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 1. Service connection for frostbite residuals of the ears 2. Service connection for frostbite residuals of the feet The Veteran seeks service connection for “the residuals of frost bite of the feet and ears. In Alaska, I was exposed to extreme cold temperatures, and I feel that this may have been the cause of my condition.” The Veteran did not provide any description of an ear condition, and regarding his feet, he wrote, “my toe nails are thick and discolored and my feet stay cold and I can not keep them warm and when the temperature starts dropping my feet hurt.” However, after a thorough review of the Veteran’s file, no conditions, treatment, or diagnoses of his ears or his feet (other than the peripheral neuropathy of his feet due to his DM, which will be discussed below) are shown in either his service treatment records, or in any subsequent treatment records. The only treatment note that addressed cold intolerance reported, “No polydipsia, polyuria, polyphagia, heat or cold intolerance.” As noted above, without proof of a current disability, there can be no valid claim. Here, there is no current disability of residuals of frost bite for the Veteran’s ears or feet. The Board finds that although the Veteran had service in Alaska, and exposure to cold temperatures could have occurred, the medical evidence of record does not show that he was ever diagnosed with frostbite, nor does it show any residuals from frostbite. As the Veteran does not have the requisite current disability to support a claim for service connection for frostbite residuals, the claim must be denied. As a final matter, the Board notes that a VA examination is not required in this instance. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), a medical examination or medical opinion is necessary in a claim for service connection when there is competent evidence of a current disability or persistent or recurrent symptoms of a disability. As this is not the case here, the provisions under McLendon do not apply. Moreover, bare assertions of a purported condition, standing alone, do not suffice to trigger the duty to obtain a VA examination. Here, the Veteran’s statement that he has thick and discolored toe nails, and that his feet hurt when the temperature drops, by itself, does meet the standard required for a VA examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (“Since all Veterans could make such a statement, this theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every Veteran’s disability case. If Congress had intended that requirement, presumably it would have explicitly so provided.”). Accordingly, service connection for frost bite residuals of the ears and feet is not warranted and the claim must be denied. 3. Service connection for Diabetes Mellitus, type II (DM), due to herbicide agent (Agent Orange) exposure The Veteran asserted that his DM is due to Agent Orange exposure when he served in Alaska, “where [he] was told that Agent Orange was stored;” he later amended his assertion in his Notice of Disagreement to include each duty station to which he was assigned. The provisions which allow for service connection for DM due to Agent Orange exposure require verified service in Vietnam, certain areas in Korea, or certain air bases in Thailand. The Veteran does not have service in any of these locations. As stated above, without service in these locations, actual exposure to herbicide agents must be verified through an appropriate service department or other source. In fulfilling its duty to assist the Veteran, VA sought verification of his exposure to Agent Orange. In a May 2014 Formal Finding of Inability to Verify Herbicide Exposure in Alaska, a military records specialist reviewed the Department of Defense (DOD) list of sites associated with herbicide use or testing. He concluded that no use, testing, or storage of tactical herbicides, such as Agent Orange, occurred “at any location in Alaska.” Upon the Veteran’s statement in his Notice of Disagreement that his potential Agent Orange exposure included each of his duty stations, VA obtained an addendum opinion. In an April 2015 Formal Finding of Inability to Verify Herbicide Agent Exposure in Alaska, the military records specialist determined that a review of the domestic locations of tactical herbicide (Agent Orange) use and storage does not show any use or storage at Fort Richardson, Fort Greely, Fort Jackson, Fort Leonard Wood, or Fort Lewis. In addition to the competent and credible evidence just described, the Board also observes that when the Veteran filed his initial VA claim for hearing loss and tinnitus in March 2007, he checked “No” when asked, “Were you exposed to Agent Orange or other herbicides?” Based on the foregoing, the Board finds that the Veteran was not exposed to herbicide agents in service, and the presumption for service connection for DM due to herbicide agent exposure is not for application. 38 C.F.R. § 3.307, 3.309. Additionally, the earliest diagnosis of DM in the Veteran’s file is September 2006, 38 years after the Veteran left the service. The Veteran has not asserted, nor does the medical evidence of record support, a showing of continuity of symptomology. Thus, service connection cannot be granted based on the continuity of symptomology of a chronic disease. 38 C.F.R. § 3.303(b), 3.309. Finally, the Veteran has not asserted that his DM began in service. Moreover, his service treatment records do not show any diagnosis or treatment for DM in service. For all of these reasons, the Board finds that service connection for DM is not warranted under any theory of service connection, and the claim must be denied. 4. Service connection for left upper extremity peripheral neuropathy secondary to DM 5. Service connection for right upper extremity peripheral neuropathy, secondary to DM As discussed above, the cornerstone of a successful claim for service connection is a current disability. Here, a complete review of the Veteran’s medical evidence of record shows no treatment and no diagnosis of left or right upper extremity peripheral neuropathy. The Veteran’s treatment records show that he has had several examinations regarding his DM, to include examinations and treatment for other medical conditions due to DM, such as diabetic retinopathy and diabetic foot care; there are no entries for peripheral neuropathy in either upper extremity. Accordingly, as there is no disability or symptomology of upper extremity peripheral neuropathy, service connection is not warranted, and the claim must be denied. 6. Service connection for left lower extremity peripheral neuropathy, secondary to DM 7. Service connection for right lower extremity peripheral neuropathy, secondary to DM As an initial matter, the Board observes that the Veteran has a diagnosis of bilateral neuropathic foot pain, described as pain and tingling in both feet, diagnosed in April 2014. However, as the underlying cause of his bilateral lower extremity peripheral neuropathy is DM, which is not a service-connected disability, the claim cannot succeed on a secondary basis. Furthermore, the Veteran has not claimed, not does the medical evidence of record show, that the Veteran’s bilateral lower extremity peripheral neuropathy had its onset in service, or within one year of leaving the service. Thus, the medical evidence of record does not show continuity of symptomology or the onset of this chronic disease within the applicable presumptive period after service. 38 C.F.R. § 3.303, 3.307, 3.310. (Continued on the next page)   Accordingly, service connection for left and right lower extremity peripheral neuropathy is not warranted under any theory of service connection, and the claim must be denied. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Nelson, Associate Counsel